Scotland could seamlessly continue its membership of the European Union even if the rest of the UK votes to leave in June's referendum, according to constitutional experts.
Scotland is far more pro-EU than other parts of the UK, according to all recent polling, causing first minister Nicola Sturgeon to repeatedly raise the prospect of Scottish voters demanding a second referendum on independence should they be taken out of the EU against their will as a result of June 23's vote.
Experts on European law have told BuzzFeed News it would be possible for Scotland to hold another independence referendum after a Leave vote and, if Scots vote for independence this time, the Scottish government could successfully apply to become a member and "effectively stay" in the EU should the rest of the UK leave.
Article 50 in the Lisbon Treaty, signed by all EU members in 2009, states that any country that decides to leave the EU will have to take two years to leave, or possibly more if it's required, in order to agree a leaving settlement with the other 27 countries that make up the union.
European law experts Martin Trybus and Martin Hedemann-Robinson agreed that, in those two years, it's theoretically possible that Scotland could hold a referendum on independence and tempt the other members of the EU to fast-track an independent Scotland into the union to soften the blow of the UK leaving.
"In practice, I think that is perfectly possible," said Trybus, who is a professor of European law at the University of Birmingham. "There's always been a procedure to join the EU, but the procedure to leave is relatively new from 2009's Treaty of Lisbon. If the UK votes to leave, they would notify the European Council and then, after two years, the country would be out of the EU – so we're talking about a two-year window.
"In that window, Scotland could have a referendum, complete its independence, and put in its application to become an EU member as an independent country, perhaps on the same date the UK leaves or a second before or a second after. Scotland could, effectively, stay."
An independent Scotland's EU membership was one of the most prominent issues raised by the country's 2014 independence referendum, where David Cameron argued that Scotland would have to "go to the back of the queue" of countries that wanted to join the EU such as Turkey and Macedonia.
However, Trybus said Scotland's entry would be quickened both because it already complies with all EU laws and rules as a current member, and because it would lessen the possible crisis the EU could face if it's rejected by one of its most powerful members.
"The UK leaving would be, at least for a while, quite a blow," said the professor. "It's one thing for a small member to leave, but the third- or fourth-biggest economy and a net contributor? That's a huge blow. The carrot that the EU would get out of admitting Scotland quickly is to soften that blow a bit. If a part of the UK separates from the UK to stay in the EU, that's a strong message, it would be very attractive to them."
Hedemann-Robinson, a senior lecturer in European law at the University of Kent, said it was theoretically possible for Scotland to seamlessly continue its membership of the EU, but the main stumbling block to would be whether the UK government would allow the Scottish government to negotiate with the European Council before it is officially an independent country.
"If it is clear during the two-year window that Scotland is (very likely) to gain independence and wish to accede to the EU then the UK could theoretically liaise with the EU to arrange for a separate track of negotiations to address the (future) EU–Scottish relationship," he said.
"However, in my view such a coordination would be extremely difficult to arrange and deliver. The UK government would be likely to hold the view that a Brexit vote in the UK referendum would be binding on all the UK until Scottish secession from the UK has been completed according to UK constitutional requirements.
"All this would mean that there would be very little time left, if any, in the two-year UK withdrawal negotiations window for EU–Scottish accession negotiations to commence in any real degree of earnest."
There is uncertainty over what would happen should part of a member state want to stay while the rest leaves because it hasn't happened before. Only the exact opposite has happened, when East Germany became part of the EU when it united with existing member West Germany in 1990.
"Conceivably, the European Council might agree to extend EU–UK withdrawal negotiations with respect to Scottish issues in order to try and minimise the adverse impacts of the UK withdrawal process on Scotland," said Hedemann-Robinson. "This would be a logical and fair approach for the European Council to take but it would not be bound to do so.
"In sum, these are uncharted waters."
Jamie Ross is a Scotland reporter for BuzzFeed News and is based in Edinburgh.
Contact Jamie Ross at email@example.com.
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